Nigeria must globalize legal practice, resolve endless litigations, says Adesina
Senior Advocate of Nigeria (SAN), Dele Adesina, in this interview with MARCEL MBAMALU hints on the need to reform the Nigeria Bar Association (NBA), create better welfare for lawyers, globalize legal practice and restore confidence in Nigeria’s judicial system.
The forthcoming NBA election, like the previous one, will be done electronically, how would that ensure a transparent process?
I don’t think there is anything wrong with electronic voting, more particularly when it affords everybody the opportunity of participation. It means that whosoever emerges will become a true representative of the generality of the members of the association. To that extent, I embrace it.
I was one of those who supported the former president of the NBA, Austin Alegeh (SAN) when he was making a case for inclusive participation in NBA elections.
However, the first experience of this that we had in 2016 left some misgivings, to the extent that it even ended in the court. The second one in 2018, ended in court litigation. That raises a lot of concern; it is not that we should not embrace court resolution of dispute, but I believe that it’s not right for an election of a professional association. The consequences of those court actions also had a very negative impact, not only on the efficacy of the leadership taken to court but also and more importantly on the unity of the association. Those who felt cheated and those who supported the person that felt cheated stayed away and you need the adequate opinion, multitude of ideas, support of everybody to successfully run an association or a nation. That is the issue, and I hope that we can get a way out of this and ensure this does not continue.
How do you get out of the situation?
A lot will depend on the leadership under whom the election is being conducted and on those that are on the driver’s seat— the electoral committee of the Nigeria Bar Association—conducting the elections.
Wouldn’t you rather see post-election litigation in NBA as a reflection of what happens in the wider society, where politicians hardly accept defeat?
If there must be an oasis of sanity in an insane society, it must be the legal profession. That corruption is rampant in the larger politics, that vices are what you still deal with on daily basis in the larger politics of the nation does not justify the importation of these vices into the affairs of a professional body like the Nigeria Bar Association. The legal profession must correct the ills of the society; it must exist for the advancement of the society. The society cannot advance if it is held down by corruption; it cannot advance if it is held down by prejudices; it cannot progress if it is held down by mediocrity in leadership. The professional association cannot afford such things. They must impact positively on the society.
People could argue that justice is also about the minority having their say and allowing everyone to express their disagreement. In this context, how do you respond to the general opinion that lawyers don’t even show good example by discouraging clients from filing frivolous cases in court?
Some of us believe in the ideals; most of us do. The problem we have had over the years is in not dealing decisively with those who do not believe in the ideals; and that would not continue for too long. For example, sometimes in 2013, a politician who contested for the governorship election in his state came here, and said he was told that he lost; which means he didn’t believe that he lost. He went to the tribunal; he lost there. He went to the Court of Appeal and it delivered two judgments, as it were. They delivered a judgment where he lost but they did not give reason saying that it would be given later. By the time they assembled to give the ruling at the court of appeal, the 60 days allowed by the constitution had expired. He went to the Supreme Court and it decided that the judgment without reason was a nullity. The reasons they gave after the 60 days had expired; it was a nullity and the case was dismissed in the Supreme Court.
The two judgments were nullified. After about six months, somebody introduced him to me; he came to the chambers and we argued for a long time. He had done all the research some lawyers cannot even do, into finding out the meaning and the consequences of nullity, of which he found out that in law nullity means that the thing did not take place at all. I told him that he was correct and that the Supreme court should have gone further to assume jurisdiction, to decide that if the Court of Appeal had nullified it, it should have done the right thing under the law. To the extent that the Supreme Court didn’t do it, you are right to be aggrieved but six months after there is nothing more to do. He has a right but the law has taken that right from him and he can no longer ventilate it.
He disagreed and said the case was different from the election petition and it must go on. I said it is an offshoot of the election petition that he took and the law says the number of days in the High Court or Tribunal, Court Appeal and the Supreme Court had expired. If he adds the two months he spent in the Supreme Court and the six months it took him to come to me, making eight months, he can no longer go back. I couldn’t persuade him and I told him that there was no case there. He left me. If I had told him to pay N50million, he would have paid.
Eventually, he went to Abuja to brief another SAN who went to the Supreme Court. On the day that case was to come up, the Supreme Court left the case and descended on the lawyer. They said he was one of those destroying the profession and that the knowledge of the law should have told him that it was not a matter to be re-litigated.
So, what we need to do as a profession is to strengthen our disciplinary mechanism; the Code of Conduct and the Legal Practitioners Disciplinary Committee are there. Once we strengthen these mechanisms, people will sit up.
Do you see that happening overtime?
Of course, yes. Before now, the provisions of the rules of professional conduct were not as expansive as they are today. In 2007 (I can’t remember who was the president of the Bar at that time), it was expanded. The first president to bring about an amendment was Chief Bayo Ojo (SAN), who was president between 2004 and 2005. Olisa Agbakoba came there 2006 to 2007. But at that time Chief Ojo was the Attorney General of the Federation, there was an amendment to the Legal Practitioners Code of Conduct in 2007. Under Austin Alegeh, there was also another expansion. Before then, when people do something, it would be interpreted in terms of how it affected others as lawyers or as individuals. If it’s just an individual, they would say it is not our (lawyers’) business.
But Alegeh expanded the situation to say that, even when, as an individual, a lawyer fights on the street, it has a negative impact on the profession. So he’s guilty and would be charged with professional misconduct. All that we need to do is to intensify the application of those rules.
What role do you see the NBA playing in redeeming the image of the judiciary, considering that aspersions are being cast on that third arm of government for not being truly independent of the Executive arm?
We can help in a many ways. In fact, one of my missions in getting involved in this race is to take proactive and sustained effort to change the present negative perception of the Nigerian society about the legal profession. The perception of the Nigerian people about the legal profession today is very low. They believe that the legal profession is part of the problems of this nation. Our perception can be more real than reality if nothing is done about it. No one is going to do it except the NBA itself. The judges cannot defend themselves, they can only be seen but they can’t be heard. It is the duty of the Bar to defend the Bench.
I granted an interview on TVC and was explaining why you might have two courts of coordinate or concurrent jurisdiction giving different interpretations to a particular situation, set of facts and the law. In Nigeria today, where that happens, we are quick to conclude that one judge had taken money; quick to say that judgment goes to the highest bidder; quick to say that the Nigeria judges sell judgments. Those are the kind of things you hear. Does this help the judicial system? No.
Do you believe there is corruption in the judiciary?
Why will I say I do not believe? I do believe. But I also do believe that majority of the practitioners on the Bench are still innocent and incorruptible. It is the responsibility of lawyers and journalists to collaborate and fish the bad ones out of the system and purify it. What we need is purification of our judiciary, not its condemnation. What we see today is a condemnation without any proactive measure to purify the system.
I am going to be actively involved in purifying the system. I do not believe that we can use the standard of a minority to condemn the majority. For example, I went to Edo in 2018 to deliver a keynote address. All the judges of the High Court, the justices of the Court of Appeal, the Governor and the Deputy Governor were all seated there. We were discussing these topics and I conceded to them that there was corruption in the Judiciary as many people said. I did some calculations and said that I did not believe that the majority were corrupt. The few that are corrupt should be thrown out, and one Justice from the court of appeal in his remarks said he used to know a particular Judge, who wanted to travel abroad for a course but had no money. He went to a retired Judge who gave him money to travel. He said he went on that trip and came back to thank him. Another judge also wanted the same help from this same retired Judge as he couldn’t finance his trip and the retired Judge told him to go and collect the money from those he had sold his judgments to. The retired judge did not give the money.
Situating it with what we have in Nigeria today, there is no difference between the corrupt and the incorruptible in Nigeria; we are all suffering together. He said there must be a way to separate the wheat from the chaff. This was 2018 in Benin during the NBA Benin Law Week.
There was a similar programme in Lagos, 2019, the death anniversary of Chief Kehinde Shofola. While the lecture was going on, it got to the interactive session and another judge got up and said if they see her at the airport or the road, people are free to greet using madam instead of My Lord because immediately that is been said, people around turn to say she is one of the corrupt people. If we are telling the whole world that the judiciary is corrupt, the whole world will see it as corrupt. It will get to a point where no one will access the judiciary and take the laws into their hands. Anarchy will replace the justice system. That note of caution is very important. If I find myself in a position of leadership, I will do something. We all realise that judicial corruption is a problem, but how much have we done about it? We are a nation that technically avoids its problems thinking that, over a period of time, it will solve itself. No problem can solve itself except a human does.
Appointment of judges has remained a knotty issue among lawyers, who, sometimes, challenge the process in court. From the potential NBA presidency under your watch, what would be the solution?
I am very clear-headed as to why I want to be president of the Nigeria Bar Association. The desire to ensure that things are done properly is my driving force. The motive is service alone. Within 60 days in office, we will set up a justice sector summit in this country to look at these problems. We have to approach it in a scientific manner; not a fire brigade approach or mentality. At that summit, some of the topical issue would be judicial corruption, why, by who and what is the way out. All stakeholders would be present. The judges, beneficiaries of the services, lawyers, Governor reps, and Attorney General would all be present.
The motive will not be to shame anybody, but to depart from the past and shape a new future for the vibrant, honest and dynamic judiciary. We are going to look at the budgetary allocation to the judiciary, the remuneration of the people that are there with what coronavirus pandemic, the core process that has changed, the new ways it is introducing, we are going to look at how we can inject technology into our judicial process and this, in itself, is going to be a function of so many things: fund, training and others. The key factor will be appointment of judicial officers, the adequacy of remuneration, emolument, incentives and general condition of service of the judicial officers. We will ask how to restore credibility and integrity to our judicial system. How do we reduce the workload of the appellate court?
We need to look into areas where a situation occurs in one state and they take it to the Supreme Court in Abuja. We are going to look for a need of a constitutional court so as to relieve our traditional court from this overwhelming dominance of political cases. The idea of the constitutional court has been known since 2005. I was a member of the National Political Reform Conference. 2005 till now is about 15 years and nothing has been done about it; the argument is still raging.
That is why somebody who believes in these issues must go there to the leadership of NBA and bring about these changes. The NBA is a catalyst, it must move the nation forward, and it must move the Judiciary forward. I am so passionate about it. The time has come when we must elect a leader to become the president of the NBA who will make the two years count for the association and the nation.
I am looking at responsibility of the NBA beyond managing the affairs of the NBA, but looking into the legal profession itself. There was a time in this country that the judiciary was regarded as an anointed institution, and members as representatives of God on earth. How many people have rights or power to sit in judgment over their fellow men? Some judges have sentenced their fellow human beings to death because they are empowered to do so. That is not an office to be abused, misused and castigated as it is today in Nigeria.
What’s your take on the ongoing debate about whether, or not, Senior Advocates (SAN) alone should lead the NBA as president?
For me, the problem we have in the nation—which has also crept into the NBA affairs— is the failure of the people to remember their history. Institutional memory is no longer there for some of our members. Even if you were not there when those histories were made, ask from people. We have had presidents of the NBA who were non-SAN and they performed creditably. Alao-Aka Bashorun was president between 1987 and 1989. Between 1991 and 1992, another non-SAN, Priscilla Kuye was president of the Bar Association and she performed creditably well. She spearheaded trouble against the violation of rule of law and court orders. She was not a senior advocate. Charles Idehen was also president between 1989 and 1991; he was not a SAN.
We were very active in the administrations of these people. They performed well, not because they were not SAN but because they had the ability and capacity.
We have also had SAN as presidents of the NBA who had remarkable tenures: Wole Olanipekun was president between 2002 and 2004, and he held the banner very high, in terms of rule of law and service to members of the association. OCJ Okocha was president between 2000 and 2002 and he was a SAN. In fact, he was a former Attorney General of Rivers State from 2005 to 2006. Chief Bayo Ojo, Rotimi Akeredolu and Olisa Agbakoba (2006 to 2008), who were presidents and senior advocates served well. Olisa Agbakoba was not only a SAN when he became president but also was living a larger-than life democrat because of his human rights and pro-democracy activities. If none senior advocates and senior advocates have performed, there is no relevance to the argument going on now.
As a candidate, the factors I will want a general lawyer not to consider the fact that someone is a SAN or not a SAN in this coming election. It is not in the demand of the constitution but you must be guided by some democratic fundamentals if you want to make the right decision. The fundamentals are: You must be guided by the capacity of the cabinet, the capability of the candidates, competence of the candidates. You must find out the standard of courage of these candidates to speak truth to power when the need arises, who among the candidates have the pedigree; and, above all, you must consider the experiences of these candidates. What have they done in the past to convince you that they will be able to do it? All these five fundamentals are applicable to SANs, a junior advocate and others. Once you are above 15 years in the Bar, the constitution says you can contest to be president. For purposes of emphasis, to contest for the president of the NBA, your capacity, capability, confidence, courage and experience are key. If you disregard these five keys, you will make the wrong choice. That is why we say people deserve the leadership they get. Some people will answer the five keys in a negative way and people will still go for that person. They shouldn’t complain if the person does not perform.
Are you worried that this unfortunate SAN/non-SAN divide that has crept into the NBA could fester after the election, with attendant leadership challenges for the emerging president?
This question is a genius one. You don’t have to be an astrologer to predict the future sometimes; it is a function of adequate comprehension of the fact sometimes. The picture you have just painted is very real and it would be unfortunate for that to happen, because a house that is divided against itself can never stand. The greatest challenge NBA has today is division from within. If there is a crisis of confidence, with SANs, fighting the rest, and vice versa, the association is dead and lawyers would be ashamed to call themselves lawyers. Members of the society will stone them because their expectation about the legal profession is not small. What they will expect the NBA to do, they probably will not expect from the NMA. Today, NBA’s strength is not up to 50 percent of the unity and strength of the NMA. For example, during the coronavirus pandemic, the FG brought in some Chinese doctors, the NMA came out to say that they do not support that initiative because they had enough doctors here in Nigeria. Even when those people were brought, they were later returned secretly. NMA got what they wanted.
If it were NBA, no one would listen, because they know that they have internal strife within them. Unless we put our house in order, we cannot achieve the goal that we set out for ourselves.
On this note, there are responsibilities on the part of individuals and on the part of the collective as lawyers in this country to reconstruct the NBA. If we do not do that, we cannot reconstruct the nation and the people are expecting us to reconstruct the nation. We have the ability to do that through constructive suggestions and engagements with the authorities.
The Bar Association championed the whole idea that led to the overthrow of military regime in Nigeria, and led to democracy in 1999. Leadership of the NBA spearheaded the talk about Sovereign National Conference. In 2005, we had what we called the national political reform conference, 1n 2014; we had national constitutional reform conference. When you drop an idea, no matter how small, don’t underestimate it because it can become something good.
In unity lies our strength. I have put together very practicable and proactive agenda in my manifesto that will address and please the followership, the young lawyers, the juniors that are in need of intervention by way of institutional welfare to give them hope and a future in the profession. People complain when they feel alienated by their own profession, when they are not getting anything in return from their membership, which is the complaint of the multitude of our junior lawyers today. I have done it before and I can do it again.
When I was campaigning to be the general secretary of the NBA in 2002, I got to Aba to campaign and someone asked to know what he would lose if he was not a member of the NBA. I got up and said that the question was the reason I was contesting for the office. By the grace of God I won the election and I thought of how to compensate the lawyer who is paying his fees. We brought the idea of instituting what we called Mandatory Continuing Legal Education. This is a profession that requires renewals. The programme was free of charge and anyone who attended would be issued a certificate. An insurance policy for lawyers was also introduced.
The NBA at the time you were Secretary-General in 2002 intervened in Anambra State by putting something together for the family of Barrister Barnabas Igwe and his wife when they were murdered in Onitsha. Did you ever follow up to know what finally became of their children?
I was at the centre of it all. That incident happened only four days after our assumption of office. We assumed office on Friday and the incident happened on Sunday. After our conference in Ibadan, everybody went to his or her various locations. Information got to me on Monday that they were murdered on the street of Onitsha. The husband was the chairman of the Onitsha Bar. I called the president of the Bar; Wole Olanipekun (SAN) and told him what happened. I told him it was a test of our capacity. He called the Third Vice President in Port Harcourt and told him to go down to Onitsha for a first-hand report. We were able to establish that it was a pre-meditated murder and it was a confrontation with the state government. We gathered up crowd of lawyers that Onitsha had never received at his burial and vowed that no lawyer should be killed based on his belief anymore.
We even set up our own investigative team and the Association relocated the family from Onitsha to Asaba on advice, for the safety of the children.
One of the children is a lawyer today. We had set up an endowment programme for them but after I left office, it stopped. Continuity is one of the problems that we have in our institutional history. Individuals will always need their professional association because there may be trouble anytime.
What specific message do you have for lawyers as they select who will lead them as president in the next two years?
I want to encourage them to be very decisive in their choice. Two, for the multitude of our juniors, I would like them to consider the five fundamentals of leadership I enumerated earlier. How rich or poor is not one of the fundamentals. Those fundamental qualities of leadership are in-born, cultivated and acquired. They should also consider who, among the candidates, has prepared for that leadership and I can say that no one has prepared more than I did. During the Aba conference I referenced earlier, another lawyer asked why I was contesting for Secretary instead of President. I replied that I wanted them to see what I could do, so that when I came back, they would give me their support and have a good reference of me. That was in 2002 (18 years ago).
They should consider those politics and make an informed decision that I, Dele Adeshina will make those two years count and have things they can concretely refer to that I have done.
What are those in specific terms?
I have carefully examined the state we are and why we are where we are. I have proceeded to itemize those things I believe can take us from where we are to where we should be.
One of them is the corporate governance of the association itself. The outgoing president has done much in terms of probity and accountability for the profession. I will proceed from there by professionalising the national secretariat and isolating it from the politics of the Bar, which most of them have been engrossed with for so many years.
Two, NBA president has suddenly become an executive president under the constitution, but the democratic element appears to have been subordinate to a particular person. I want to democratise that office. The national body can hardly do anything without carrying the component branches along. We are going to make the branches integral, the leadership at the branch level to be part of the national leadership. We would make the young lawyers under the auspices of the Young Lawyers Forum to have representatives at the national executive committee, so that they can come to tell us what the problems with the young lawyers are, the solutions to those problem. That is what I mean by Corporate Governance of the association. It would be democratised.
We also have the issue of welfare for both senior and junior lawyers. The welfare of the junior lawyers for me is not limited to salary. There is a misconception that salary means welfare and welfare ends with salary. But the meaning of welfare is how well you are faring. This is a function of so many things like the salary, the conditions, the prospects in the profession; looking into the profession and creating opportunities for you as a junior counsel is part of it. How do you grow from one place to another? All these are matters of welfare. A leader who puts you in situations that would put more money into your hands is part of welfare. These will engage my attention.
Three, we will explore opportunities for junior lawyers to practise beyond the shores of Nigeria. For junior lawyers who have acquired some good level of knowledge and experience such as five to six years at the Bar, five to six of them coming together to form a partnership, a trust fund would be set up, where they can access money and bring their dream to reality.
Apart from that, I am going to look at the issue of globalisation of legal practice. Foreigners come to Nigeria to take our briefs and people who are older than them would be playing second fiddle. We are also going to focus attention on all our specialised members like lawyers with disabilities, to make maximum impact in their chosen profession.
There will be focus on the judiciary, with emphasis on efficient justice delivery. Today, are people satisfied with the efficiency they are getting, are they fulfilled functionally, how come there is no solution to endless litigations? Something has to be done which is going to be addressed in the justice summit that I talked about. We are also going to work on the rule of law. If there is any area the society believes that the association has failed for many years, it’s in the area of Rule of Law. We are going to defend the independence of the judiciary. We are going to look at the internal discipline by making lawyers, junior or senior, accountable for their conducts. We are going to make legal practitioners abide by the rules of professional ethics. We want to see lawyers become standard bearers of what is good and excellent once again, instead of people thinking that lawyers are part of the problems of the nation.
We will mount a sustained campaign against frivolous litigations; a lawyer must be a judge in his chambers to advise his clients and only accept cases that are suitable for litigation. We are going to look at the content of legal education in Nigeria. I believe the time has come for us to look at our educational standards.
There is hardly any link between what they are being taught in the university and Nigeria Law schools with what happens on the streets. When I was the Pro-chancellor and chairman Governing Council of a university, I found out that students only passed through the university but the university didn’t pass through them. We have to look at our content; so, the second organised summit we are going to have is what I call Legal Education Summit. It will involve practitioners, law teachers and the society; they will all play a part. How do we transcend these education formats that leave our members unemployed on the streets, to a clinical education that will largely teach people what they can do for themselves?
Lastly, we are going to look at the issue of corruption, not just in the judiciary but also in the larger society. NBA must assist the society to grow and advance. If there is anything that is delimiting our advancement, it is corruption. We will sit and think of strategic ideas that will help the government to grow from where we are to where we should be. We will look at the system, the causes of these, and put more attention on how we can remove the causes rather than fighting the symptoms. Government would be advised accordingly from time to time.
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